The U.S. Supreme Court last month ruled in a 5-4 decision in Michigan v. Bay Mills Indian Community that the tribe, as a domestic sovereign entity, is protected from being sued by the state of Michigan.
The tribe had briefly operated a small, off-reservation casino in Vanderbilt, in upstate Michigan. The case had been closely watched by Native American tribes concerned that an adverse ruling could lead to lawsuits against off-reservation gaming operations. It was sent back to the 6th Circuit Court of Appeals for disposal.
Justice Elena Kagan, writing for the majority, said the federal Indian Gaming Regulatory Act only allows a state to bring lawsuits challenging casinos operating on Indian lands. But the Bay Mills casino was opened outside the tribe’s reservation, beyond the law’s coverage. Therefore, Kagan wrote, since the casino does not fall under federal gaming laws, it is subject to the ordinary tribal immunity that extends to off-reservation commercial activities.
Kagan noted that Michigan officials have other options for dealing with the casino, such as bringing a lawsuit against individual tribal officials or even prosecuting tribal members under criminal laws.
Bay Mills purchased 40 acres of land in Vanderbilt, about 100 miles from its Upper Peninsula reservation, in August 2010 with interest from a trust fund established under the Michigan Indian Land Claims Settlement Act of 1997, alleging it had not been adequately compensated for land ceded under 1800s treaties. The tribe opened an 84-slot Class III gaming facility there on November 3, 2010. Tribal officials claimed any land purchased with settlement act funds are eligible for tribal gaming under the Indian Gaming Regulatory Act.
The state of Michigan disagreed and filed suit in federal court in December 2010, claiming Bay Mills did not have permission from the federal government and violated the terms of the gaming compact and IGRA. The Little Traverse Bay Bands of Odawa Indians joined the lawsuit. The district court ruled that the Vanderbilt land would “likely” not qualify as Indian lands under IGRA, and issued an injunction that forced the tribe to close the casino in March 2011. It has remained closed since then.
Bay Mills filed an appeal, asserting sovereign immunity. The U.S. Court of Appeals for the Sixth Circuit reversed the federal court’s decision, declaring that federal courts lack jurisdiction under IGRA, and barred the state’s claim by the doctrine of tribal sovereign immunity.
While Michigan may not be able to sue the tribes, the court left open the ability to sue individual tribal officials, casino executives and even the players who would frequent the casino.